Wednesday, July 23, 2008
Denial of Pension Boost to Injured Deputies Held Unlawful by C.A.
By KENNETH OFGANG, Staff Writer
A county policy that treats “cash-out” payments in lieu of unused vacation time as income for pension calculation purposes for sheriff’s deputies who take regular retirement, but not for those who retire following disability leave violates state law, the Court of Appeal for this district ruled yesterday.
Div. Five affirmed Los Angeles Superior Court Judge Susan Bryant-Deason’s ruling that the differential treatment is contrary to Labor Code Sec. 4850, a portion of the Workers’ Compensation Law that allows public safety officers—peace officers and firefighters—who are injured in the line of duty to take disability leave “without loss of salary.”
County ordinance permits a deputy sheriff who has accumulated more than 320 hours’ vacation time to defer the excess hours to the following year, and then to cash out if the hours aren’t used. If the cash-out occurs in the pay period used to measure compensation for pension purposes, it is reported to the Los Angeles County Employees’ Retirement Association as pensionable income.
Under the challenged policy, however, deputies who retire in the year following a “4850 leave” for work-related injury are compensated for their excess hours at retirement, but the money is not pensionable income.
The plaintiffs, 15 retired deputies and the Los Angeles County Professional Peace Officers Association, argued, and the trial judge agreed, that allowing a deputy who had not been injured on duty to collect a larger pension than one with an identical work history who had been injured was contrary to legislative intent and violated the Equal Protection Clause and the constitutional prohibition against impairment of contracts.
Justice Orville Armstrong, writing for the Court of Appeal, said the trial judge was correct as to Sec. 4850 and that it was unnecessary to address the constitutional issues.
“Salary,” as used in Sec. 4850, has been interpreted in earlier cases to include fringe benefits, Armstrong noted.
The justice distinguished Los Angeles County Prof. Peace Officers’ Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, in which the court sided with he county and LACERA in rejecting claims that injured district attorney investigators whose vacation time was cashed out when they had to retire because they were unable to return to work after exhausting their disability leave were entitled to have the amount of the cash-out treated as salary for pension purposes.
The “critical” difference between the cases, Armstrong explained, is that the investigators who sued in the 2004 case were not allowed to accumulate excess vacation hours, but were subject to a “use-it-or-lose-it” policy.
“Here, the County had no policy of forcing employees to use excess hours, and the evidence was that it had no practice to that effect, either,” the jurist wrote. The evidence, he added, showed that hundreds of sworn employees in the Sheriff’s Department cashed out deferred excess hours each year.
Armstrong also rejected the argument that the issue must be bargained in light of last year’s ruling in Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2007) 154 Cal.App.4th. That case held that, pursuant to the County Code and collective bargaining agreements, the county could force deputy sheriffs and district attorney investigators to use their accumulated vacation time instead of cashing it out.
“As we see it, the fact that the County had the right to force deputies to use vacation is irrelevant, in light of the evidence that the County did not do so,” Armstrong wrote.
The case was argued on appeal by Gregory G. Kennedy for the county and Stephen H. Silver of Silver, Hadden, Silver, Wexler & Levine for the plaintiffs.
The case is Los Angeles County Professional Peace Officers’ Association v. County of Los Angeles, B200582.
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